Search Site

Saturday, January 07, 2017

Does the Holman Rule authorize unconstitutional bills of attainder?

House Republicans have reinstated "the Holman Rule,"a 19th century procedural rule allowing individual congresspersons to propose appropriations cuts targeting very narrow categories -- for instance, the pay of a single civil servant. House Democrats, led by Steny Hoyer, have complained that such surgical strikes on individual federal employee's pay could undermine civil service protection.

Is it an adequate response to Hoyer that any retaliatory appropriations rider directed at a specific civil servant would be barred by the prohibition on bills of attainder contained Article I, section 9? United States v. Lovett (1946) is the most relevant precedent, holding that Congress cannot amend a 1943 spending bill to bar federal funds from being spent on the salaries of three named civil servants. The Lovett majority acknowledged that the spending limit was not literally a criminal penalty but nevertheless found that "[t]he effect was to inflict punishment without the safeguards of a judicial trial and 'determined by no previous law or fixed rule.'"

Of course, the victim of a targeted cut would always have to prove that Congress's motive was retaliatory -- but they would have to do so in an ordinary proceeding before the Merit Systems Protection Board. The civil service laws, after all, do not protect against a mere reduction in force brought on by budget cuts.

So is Representative Hoyer's claim just an alarmist parade of horribles that will never get a marching permit under the Constitution? Or have I over-read Lovett -- an entirely likely possibility, since it has been awhile since I have taught this stuff? (Now that the Holman Rule is back, however, I see a potentially tricky exam question, a silver lining -- at least for law profs --around the cloud of partisan polarization in which we now live).

The better solution for dealing with recalcitrant bureaucrats - especially those suspected of leaking to the press - is to transfer them to East Nowhere, Iowa, and give them a desk and harmless duties. I hope the administration is prepared to play hardball with the civil service, because it seems pretty likely that the permanent government will do everything in its power to obstruct and delay those actions with which they disagree.

Posted by: Douglas Levene | Jan 10, 2017 3:39:33 AM

Isn't even simpler? The separation of powers doctrine, implicit in the Constitution's defining powers clauses, vests all executive powers with the President. The Congess can create, abolish agencies, and can fund them as it pleases, but salaries and appointments of individuals are the Executive's if they are not mentioned specifically in the Constitution.

Posted by: Kurt Riegel | Jan 9, 2017 2:23:33 PM

I wonder why Congress doesn't make a rule that anyone in contempt of Congress cannot get paid. That would be a previously fixed rule.